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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARQUISE BARNETT
Appellant No. 345 WDA 2016
Appeal from the Judgment of Sentence January 25, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001671-2015
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 4, 2016
Marquise Barnett appeals from his judgment of sentence, entered in
the Court of Common Pleas of Erie County, after a jury convicted him of
possession of firearm prohibited1 and firearms not to be carried without a
license.2 After careful review, we affirm.
On May 22, 2014, Barnett was arrested for fleeing or attempting to
elude an officer, accident involving damage to property, and various firearms
charges in connection with his flight from officers attempting to effectuate a
traffic stop. Erie police officers had received information from a confidential
informant (CI) that a Ford Econoline van, registration plate #JML4554, had
____________________________________________
1
18 Pa.C.S. § 6105(a)(1).
2
18 Pa.C.S. § 6106(a)(1).
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been involved in a rash of shootings and may soon be involved in additional
shootings. On September 19, 2014, Barnett filed an omnibus pre-trial
motion to suppress evidence uncovered from the traffic stop. On November
14, 2014, the court denied Barnett’s motion. On April 6, 2015, the day
Barnett was called to trial, the Commonwealth obtained a forensic report
that potentially linked the guns recovered from Barnett to a shooting. The
Commonwealth requested that all the charges be nolle prossed in order to
join the additional charges3 resulting from the new information. The court
granted the Commonwealth’s request and Barnett was released from
custody.
On April 15, 2015, the Commonwealth re-filed the firearm violation
charges against Barnett and added additional charges related to an incident
where shots were fired into a house located at 1861 Woodlawn Avenue. On
October 26, 2015, Barnett filed a motion to dismiss the case for violation of
his Rule 600 (speedy trial) rights. After a hearing, the Honorable Shad
Connelly denied the motion on November 13, 2015.
On August 26, 2015, Barnett filed another pre-trial motion to suppress
the investigatory traffic stop; the trial court denied the motion finding that
the issues raised were collaterally estopped based on its prior suppression
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3
The Commonwealth added the charges of aggravated assault (2 counts),
recklessly endangering another person (2 counts), and discharge of a
firearm into an occupied structure.
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order. A two-day jury trial was held before the Honorable William R.
Cunningham on November 18-19, 2015. On November 19, 2015, Barnett
was found guilty of the above-mentioned firearm offenses.4 On January 25,
2016, Judge Cunningham sentenced Barnett to 42 to 84 months’
incarceration for the firearms not to be carried without a license charge and
a concurrent term of 5 years of probation for the possession of firearm
prohibited charge.5 Post-sentence motions were filed and denied on
February 5, 2016. Barnett filed a timely notice of appeal on March 2, 2016,
raising the following issues for our consideration:
(1) Whether the suppression court err[ed] in finding the
investigatory detention of [Barnett] was justified by
reasonable suspicion where the police relied solely upon
information from an informant who[se] reliability was not
substantiated by any objective facts?[6]
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4
The trial court granted Barnett’s motions for judgment of acquittal
regarding the additional charges involved in the Woodlawn Avenue house
shooting.
5
He was deemed not eligible under the Recidivism Risk Reduction Incentive
(RRRI) Act, 61 Pa.C.S. § 4501-12.
6
When reviewing an order denying a motion to suppress evidence, we must
determine whether the trial court’s factual findings are supported by the
evidence of record. If the evidence supports the trial court’s findings, we are
bound by them and may reverse only if the legal conclusions drawn
therefrom are erroneous. Commonwealth v. Blair, 860 A.2d 567, 571
(Pa. Super. 2004).
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(2) Whether the lower court err[ed] in failing to dismiss the
charges where the Commonwealth violated [Barnett’s]
right to a speedy trial?[7]
(3) Whether the trial court err[ed] in failing to instruct the jury
that they should disregard any evidence regarding a
shooting of the Woodlawn House where the court had
dismissed those charges at the close of the
Commonwealth’s case?
After a review of the parties’ briefs, the record on appeal, and relevant
case law, we conclude that the trial court opinions, authored by Judge
Connelly, properly dispose of Barnett’s first two claims on appeal.
Therefore, we rely upon Judge Connelly’s November 14, 2014 opinion and
November 13, 2015 opinion to affirm these issues.8 See Trial Court Opinion
(suppression issue), 11/14/14, at 5-6 (traffic stop based upon officers’
reasonable suspicion where CI’s tip was corroborated and very specific; CI
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7
In Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en
banc), our Court set forth the proper standard of review and scope of review
for Rule 600 cases as follows:
In evaluating Pa.R.Crim.P. 600 issues, the appellate court’s
standard of review of a trial court's decision is whether the trial
court abused its discretion. An abuse of discretion is not merely
an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence or the record, discretion is
abused. The proper scope of review is limited to the evidence on
the record of the Rule 600 evidentiary hearing, and the findings
of the trial court. An appellate court must view the facts in the
light most favorable to the prevailing party.
8
We instruct the parties to attach a copy of Judge Connelly’s opinions in the
event of further proceedings in the matter.
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told officers that red/burgundy Ford van with registration plate number
JML4554 that had been involved in rash of shootings was parked in specific
area; that more shootings may happen in vicinity in future; officers located
exact van in area cited by CI; van fled from police as they followed it; shots
fired in second area reported by CI; and van seen by witnesses leaving
shooting area and being driven by same black male wearing white t-shirt
whom officers had seen enter van earlier);9 see Trial Court Opinion
(Pa.R.Crim.P. 600 issue), 11/13/15, at 2-3 (Rule 600 run date not violated
where withdrawal and re-filing of charges by Commonwealth was
necessitated by factors beyond its control, Commonwealth exercised due
diligence, and re-filing was not attempt to circumvent Rule 600 time
limitations).10
Barrett’s final issue, regarding the trial court’s failure to give a
cautionary instruction to the jury that the evidence from the Woodlawn
Avenue house shooting should be disregarded in their deliberations, is
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9
See also Commonwealth v. Griffin, 954 A.2d 684 (Pa. Super. 2008)
(corroboration of information provided gave informant’s statements
reliability).
10
See generally Commonwealth v. Dixon, 140 A.3d 718 (Pa. Super.
2016) (sets forth burden of proof for Commonwealth under former Rule 600
when initial complaint withdrawn or dismissed and charges re-filed). In
2012, former Rule 600 was rescinded and new Rule 600 was adopted to
reorganize and clarify the provisions of the rule in view of the long line of
cases that have construed the rule. However, the due diligence standard
remains consistent in both versions of the rule.
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waived on appeal. Barnett failed to preserve his challenge to the court’s
instruction by not objecting when it was given. See Pa.R.A.P. 302(b); N.T.
Jury Trial, 11/19/15, at 173. Moreover, raising the issue in a Rule 1925(b)
statement of errors complained of on appeal does not overcome the
requirement that a defendant contemporaneously object at trial.
Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2016
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Circulated 10/13/2016 02:19 PM
COMMONWEALTH OF PENNSYLVANIA CL~RYi~!rt4tlt~.J3T OF COMMON PLEAS
2a;5:nof!f,,Eij.\E COUNTY, PENNSYLVANIA
v. : CRlM1rCom. v. Barnett, M.
Combined Opinion